QUESTIONS FOR PROPONENTS OF KOVALCHUK’S CONTRACT

To review: 17 years, $102 million. Takes him to age 44. $98.5 million of the contract is paid in the first 11 seasons. The 11th season is $3.5 million. The final 6 seasons of the contract total the entirety of the 11th season (the aforementioned $3.5 million).

I have read many Devils’ fans and others in the alleged know (two groups not necessarily mutually inclusive) argue that this contract does not violate the CBA. The reasoning to date has been: (1) the league has allowed contracts similar to this in the past, (2) the league is unfairly singling out New Jersey and (3) there is nothing in the CBA that bars this contract or contracts similar to it.

The first argument is an argument of stare decisis, a latin phrase that within the context of the legal world requires judges to follow precedent. It is, as an aside, the foundation upon which this country’s courts were built. The second is an equitable argument, one based on a demand for equal treatment under the law and its application. The third argues that the letter of the law, when applied to the terms of the Kovalchuk contract, do not bar it. We will call these three Group Precedent, Group Equity and Group Law, respectively.

This brings us to the questions.

Question 1: If the terms of the contract are 19 years, $102 million with the last 7 years at the league minimum, does the contract violate the CBA? Let’s take a look.

Group Precedent takes a big hit here. We are at age 46. The “Kovalchuk is only 1 year longer than Luongo” camp no longer has this position to advance. Does this group now concede the contract circumvents the CBA?

Group Equity still argues that New Jersey is being singled out, right? Maybe, but even they are getting a little uncomfortable with it. They quickly shake it off and remind themselves that Lou is a deity and all is as Lou wills it.

Group Law becomes bolder. “Show me where in the CBA a 19 year contract is barred?” We’ll get back to this group later.

Question 2: If the terms of the contract are 21 years, $102 million with the last 9 years at the league minimum, what then?

Group Precedent is pretty upset right now. They are looking at Group Equity and Group Law for answers.

Group Equity looks at Precedent and doesn’t like what it sees. It looks down at Group Law for salvation.

Group Law’s arms are crossed. They wear a collective scowl. They accuse us of mocking them. We are not. “Nothing in the CBA explicitly states that a 21 year contract is barred. NOTHING!” they pound fist to palm. Ok. They said explicitly, right?

Question 3: The terms of the contract are 23 years, $102 million with the last 11 years at the league minimum…so, how about now?

Group Precedent? Oh, that’s right, they left.

Group Equity…they split too? Damn.

Group Law. They left a note that reads, “Went back to the Garden State. Screw off!” That sucks.

So, what have we learned? The terms of the contract do make a difference. Bear with me here. If the number of years didn’t matter, then any number of years would similarly not matter. If the age to which the contract takes the player was irrelevant, then we could conceivably take the player to age 50 and beyond. If a player can be paid the league minimum or close to it for as many years as necessary to drive the annual cap downward to fit same within the team’s budget, then the cap hit could be reduced to nearly nothing. But, all of these things do matter and when one evaluates the 17 year, $102 million dollar contract with 5 seasons at the league minimum, we find fundamental similarities in principal with the 23 year, $102 million dollar contract with 11 seasons at same.

Why?

Because each of them are unprecedented. The Kovalchuk contract length is 5 + years longer than any of its alleged precedent. The difference between the cap hit and maximum annual salary is $5.5M or 92% of the cap hit. On top of all that, it has five, count them again, five league minimum years when the closest comparable is two.

Further, do to its unprecedented nature, New Jersey cannot possibly be singled out. It’s a matter of logic. If Kovalchuk’s contract had precedent, then clearly Bettman is not doing equity. It doesn’t and therefore bias (even if subjectively present) cannot objectively be advocated as the cause for the contract’s rejection.

That brings us to the ever stubborn Group Law. They are actually right. Nothing in the CBA explicitly bars any specific length of a contract to any designated age. Thus, a contract could conceivably take the player to death and beyond. We sent an email to this group asking if the Kovalchuk contract violated the spirit of the CBA. They responded that they do not believe in ghosts.

9 replies

I normally equate stare decisis to proactive decisions made by a court or governing body. I think it’s a weak argument to equate inactivity of a governing body to some policy determination that sets a precedent. How will the NHLPA cite silence as their authority in their brief to the arbitrator?

I’ve also read Quisp’s analysis of the CBA that indicates that there is no statute of limitations on other contracts that are deemed to circumvent the cap. I don’t see how the NHLPA can win this. On the other hand, as a litigator, I’ve seen quite a few questionable decisions made by judges. So who really knows what’s going to happen here?

I think you missed the point on stare decisis or I did not communicate my intent well. The fundamentals of it are reliance on precedent. You have contracts that precede that of Kovalchuk which its advocates propose should be used to uphold this one. I wasn’t trying to draw an apples to apples analogy of stare decisis as used in courts to this situation.

The who really knows is partially correct. We do know the NHL has deemed the contract as violating the CBA due to its circumvention of the CAP. That, by itself, is historic. Thus, we do know that the NHL at least has drawn the line and that will have an impact on future contracts. What we don’t know is whether an arbitrator will agree with the NHL and what impact that may have.

I didn’t disagree with your arguments as you had stated. I believe we’re both on the same page. The NHLPA will make the argument that prior contracts of players like Hossa and Luongo set a precedent for the Kovalchuk contract. But that precedent is rooted in the league’s failure to nullify those agreements.

When I think of precedent pursuant to a CBA, I think of proactive remedies such as penalties. The suspensions for hits to the head that we saw this year were good examples. Those were proactive penalties that will serve as measuring sticks for future suspensions. Players who may be suspended for lengths of time that are in excess of what the league has already handed out probably have a good argument to appeal those suspensions because of league precedent.

So, just to reiterate my point, I don’t believe that a league who has chosen to be silent in a few cases concerning questionable contracts (which are all unique from Kovalchuk’s contract anyway), serve as a winning argument for valid precedent.

Why can’t life be as simple as what you spend is what should be charged?
Basically all President,Equity,and Group means is more laws to further narrow down the wording of th CBA to the point where you’ll need a magnifiying glass to see the small print.Forever feeding an endless cycle of exploited loopholes.A wise man once said”you can tell the corrupt nature of a society by how many laws they pass”.

That’s an excellent piece, Bobby, and I liked the way that you explained stare decisis and how it impacts this decision. It clearly would have been better for all had the league maybe challenged some of these other contracts as reaching too far into an unknowable future, but the money in that unknowable future didn’t drop like a rock, like it does here. You could conceive of Luongo and DiPietro and Hossa playing to the end of the string because the value tapered off normally. The case to go after these contracts was much weaker, but perhaps it should have been done. To me, the uniqueness in the length, and the way the money just falls of the charts, puts this deal in a “one of a kind” category, so you can’t really say that they are picking on the Devils when they didn’t pick on others doesn’t hold water if there were no others. This is going to be very interesting to watch play out, and to see what effect it has on the negotiations for the next CBA, which already figured to be contentious.